A Miami photojournalist has recovered a video documenting his arrest by police …

A Miami journalist has recovered video of police officers arresting him after it was deleted from his camera. The man was covering a police effort to evict Occupy Miami protestors. He plans to file a complaint with the police department and with the United States Department of Justice.

On January 31, Miami police evicted Occupy Miami protesters from their downtown campsite. On hand to cover the action was photojournalist Carlos Miller. Along with protestors and other journalists, he was pushed down the street by a line of police in riot gear. He tried to circle around the block to return to his car, but he found his path blocked by a second line of police officers.

The police weren't arresting the other journalists around him, so Miller said he assumed he would be allowed to cross this second line of officers to return to his car. But when he approached one of the officers, he was stopped and placed under arrest. Upon his release the following morning, he found that several videos he had taken, including the one documenting his arrest, had disappeared.

Miller has since recovered some of the missing video, and it appears to back up his story. Though some crucial sequences are missing, the video shows Miller approaching a female police officer, who blocks his path and then calls other officers over to help arrest him.

"You were given a dispersal order, sir, and you were told you were gonna be placed under arrest," she told Miller in the video. "We don't want to have to hurt you," she said.

"I'm not doing anything," Miller responded. "I'm not resisting."

Constitutional violation?

Miller is a member of the National Press Photographers Association. The organization's general counsel, Mickey Osterreicher, sent a letter to the Miami-Dade Police Department protesting Miller's arrest.

Miller was charged with a single count of resisting arrest. "Aside from a blatant violation of Mr. Miller’s First Amendment rights to record matters of public interest in a public place," Osterreicher wrote, "we do not understand how, absent some other underlying charge for which there was probable cause, a charge of resisting arrest can stand on its own?"

"We believe that the recovered video of the incident will show that officers acted outside of their authority, in violation of the First, Fourth and Fourteenth Amendments of the United States Constitution as well as the Privacy Protection Act of 1980 and similar protections provided by Florida law," he wrote.

Osterreicher also pointed to a recent case involving the Baltimore Police Department. In that case, the Obama administration weighed in with a brief arguing that police officers violated the Constitution when they seized a man's recording device and deleted its contents. The United States Court of Appeals for the First Circuit has also ruled that journalists have a First Amendment right to record the activities of the police in public.

Deletion can make things worse

Miller's recovery of his video is a reminder of an important fact about modern digital systems: files that get "deleted" aren't necessarily gone forever. Often the raw data is still on the device and can be recovered. And that means that police officers who delete videos not only expose their departments to liability, they may not even succeed in suppressing the embarrassing video.

Miller's efforts to recover the video were only partially successful, and he plans to take his camera to a forensic specialist in hopes of recovering the remaining segments. He also hopes to determine the exact time the video was deleted, which could substantiate his charge that it was deleted while under police control.

Once he has gathered all the evidence, Miller plans to file a complaint with both the police department and the Department of Justice, objecting to his arrest and the deletion of his videos. The case may further entrench the growing consensus that the Constitution protects the right to record the actions of police officers in public.

223 Reader Comments

Get rid of Patriots Act and every single other stupid legislation cooked up and invented since 9/11. This place reminds me more of a Third Reich nation (like I saw in the documentary on the History Channel) than a first world democratic nation.

Indeed, except for that whole "master race" vs the reality of diversity in the US.

It takes some pretty impressive mental gymnastics to arrest someone on the sole charge of resisting arrest.

Its been awhile since I've looked into it, but I recall that there are provisions that an officer with a reasonable suspicion can place you under arrest, without officially charging you with anything; which would then likely make the resisting arrest charge more workable. Of course, given that he is a known member of the press, it'd be hard to nail him with anything relating to the Occupy movement itself, since he was just there to cover the story, and was attempting to get back to his car.

And, as blargh mentioned, its hard to see how the deletion of the videos (especially if it were by the police) would not constitute tampering with evidence. So even if the arrest was being made on suspicion of a crime, and then the resisting arrest gets thrown in too, I'd be willing to bet on it still not going anywhere if it really was the officers who deleted the videos. Same situation really helped out OJ Simpson during his trial, afterall. Granted, those was more extreme circumstances.

Normally I'm against police brutality, but in the case of paparazzi or self-styled "photojournalists," I'm for it. Journalists are by definition maggots, and photojournalists are the vilest of the species. They are not heroes, they are not crusaders, they are arrogant bullies and gangsters wrapping themselves in their "rights" while trampling on others'. There is absolutely no doubt that Carlos Miller is an asshole, and assholes are fair game for cops.

Its here we need to distinguish between true, proper journalism and the more commonly seen yellow journalism pervasive in (at least) American media. Not how out of hand it gets globally, but a real journalist will only deal in facts. Doesn't matter on the media they work in; video, photo, print, the core idea is the same. You are there purely to report the facts, and leave all other aspects of your own biases outside the story. Its the only way to make sure that you're getting reliable info out, and that is why its so rare to see it these days, better to make a quick buck pushing an agenda than get burned down for speaking the facts.

One wonders how the Constitutional protection of the press works anymore. I mean clearly the press were at one time a independent "check" if you will of gov. they told the truth as they saw it and that clear, unobstructed view of things kept people informed and the rest of us aware of the truth of things.

But now, especially a group like FOX news no longer follows this intention. They won a case where they claimed telling the truth was a violation of free speech. they won.. So clearly FOX news and likely most the others are there to tell their story and the truth no longer matters.

So given that they have no claim to the truth any longer, why are they still offered protection ? Seems as tho the true "press" is gone, and now all we have is spin, and selling points.

This so called journalist was arrested and recording devices erased.. so what? now , currently there seems to no longer be a true press who wants to tell the truth, rather just people paid for PR. paid to find nuggets of reality to strengthen whatever story they want to sell the public.

this reporter claims to be there to just record, but were they really trying to get B roll for some already written story that furthered some agenda only the publisher or producer knows about.

I'm no lawyer, but I have a hard time seeing how deletion of the videos (or pictures, whatever) by the police* would not be considered evidence tampering.

* if they did it, of course, innocent until proven guilty, etc.

The videos are irrefutable proof of what really happened. This would be admissible evidence in a trial of Mr. Miller. By police deleting a video of their actions, it's evidence tampering.

It's the same as if a cop tried to delete dash-cam footage of a traffic stop. It doesn't matter who took the video. Video is evidence.

The police are violating several laws by doing this. We already have legal precedent that police do not have a right to privacy while on the job. That was set when a police officer tried to block text messages on his work phone from being entered into evidence in a case against him.

This is ten years of citizens just giving police the benefit of the doubt. They overstep their bounds and violate laws to protect their illegal actions. It has top stop.

One wonders how the Constitutional protection of the press works anymore. I mean clearly the press were at one time a independent "check" if you will of gov. they told the truth as they saw it and that clear, unobstructed view of things kept people informed and the rest of us aware of the truth of things.

But now, especially a group like FOX news no longer follows this intention. They won a case where they claimed telling the truth was a violation of free speech. they won.. So clearly FOX news and likely most the others are there to tell their story and the truth no longer matters.

So given that they have no claim to the truth any longer, why are they still offered protection ? Seems as tho the true "press" is gone, and now all we have is spin, and selling points.

This so called journalist was arrested and recording devices erased.. so what? now , currently there seems to no longer be a true press who wants to tell the truth, rather just people paid for PR. paid to find nuggets of reality to strengthen whatever story they want to sell the public.

this reporter claims to be there to just record, but were they really trying to get B roll for some already written story that furthered some agenda only the publisher or producer knows about.

Press protection, just as copyright, only works to government benefit while the number of outlets in a area are small thanks to the up front costs in time and equipment. But now that anyone with a smartphone and some spare time can have a global reach, the basic framework breaks down because anyone can claim said protection.

So your point boils down to the fact that Carlos is correct, and the police officers are wrong, but because he was rude that somehow makes the police behavior a little better? That's not the way that it works, the police don't get to break the law because I don't display respect for their authority.

Correction: because you don't display respect for their ABUSE of authority.

They do not have the authority to harass, let alone arrest, someone for filming them while on duty in a public place. The moment that they start doing that, they're guilty of a crime, and deserve no more respect than a TSA puke illegally posing as a federal officer.

The police have no right to delete images or videos from a camera. And they cannot be allowed to charge people with resisting arrest when there was no grounds to arrest them in the first place. The US is rapidly descending the Press Freedom Index, having lost 27 places since 2010. We have seen videos of the police using pepper spray against non-confrontational protesters; destroy personal possessions; murder somebody in the street for threatening an officer (shot ten times at point blank range) and generally act with complete impunity. And yet little seems to shock Americans any more. You get a small amount of media coverage and then everything continues on as usual. Unfortunately it is mirroring a political system that is wildly out of control, with ridiculously bigoted and hateful comments being made daily by politicians.

I genuinely feel sorry for those in America who oppose what is happening yet appear powerless to do anything to stop it.

I think the police state enjoyed the Occupy movement as a whole, it was the perfect opportunity for them to see what people will accept, where the limits are so to speak. They aren't going to overnight strip every right from us, they are going to do it in baby steps. That way when everything finally is taken, we won't notice it because it all happened so slowly, and by that point it will be far past too late to do anything about it. The next time we have a "movement" or mass protest there will probably be predator drones watching overhead, maybe the one after that those same drones will be fitted with tear gas dispensers.

Thanks for the information. Any police officers happen to read this article will physically destroy the cameras from now on.

Any police officers who destroy the cameras will likely do it wrong. Memory isn't that easily erased, and certainly not by physical damage. It's a bad thing when those individuals charged with and paid for the enforcement of our laws liberally violate them.

Hey, they're here to protect us! I'm reminded of the "boys in blue" crackdown on those dastardly lemon-aid stands. Who knows? The kids could be making money to keep up their meth habits!

This unamerican activity of lemon-aid dealers must stop, and to do so these guys need to do their jobs. Sure, they might be smacking people around for no reason, and hey maybe they felt up your daughter while "checking her for contraband", but that's just part of the perks they enjoy right?</sarc>

Tampering with evidence comes to mind - that can come down department wide.

BUT his hopes of finding an exact time when the files were deleted will be a lost cause. Most recovery software nad OSes do not keep a log of deleteions by default. That is something that would have to be activated or isntalled as an after market option.

And most likely the phone would not have that sort of logging natively anyway. So he's SOL on that count.

The only thing he could do - is point to the Directory where the files were stored on the phone and show the modification dates. But again these might be altered as a result of his retreval after the fact - as they typically only keep the last mod info.

I'm also not aware of any "Journaling" practices on current phones for default installs. But I could be wrong.

Carlos Miller has a history of being arrested by police. There are compelling reasons that he should be able to go places that he does (and you can see him insisting in his videos that he should be allowed to -- incessantly arguing with police officers), but he basically asks for this kind of behavior.

I find him to be rather rude and disrespectful. Kind of like he's asking for this kind of treatment.

EDIT: I don't think that the police are using correct judgement in these situations either. I just think that you get a lot better results when you're respectful. *shrugs*

It is not necessary or required that politeness rules when officers (whose job it is to enforce laws in a legal way) are not doing so. This isn't a popularity contest. Mr. Miller has every right to do the things he does. Confrontational may not be your style, but no one is above the law.

I'm glad the police get rid of these miscreants known as the occupy movement. But I don't think police should have the right to arrest journalists for video taping it. Something tells me that the First Amendment protects journalists???

This is why I love Dropbox's new camera upload feature. I'm aware the person in the story might not have been using a smartphone that could have been password protected, but a service such as Dropbox that automatically uploads videos and pictures the moment they are saved, combined with the "delay" that a password provides (even if they start demanding the password [something they can't legally do], you can stall them while whatever application uploads the video), would have allowed one to simply go home and find the very same video safe on all of their computers and in the cloud.

I'm glad the police get rid of these miscreants known as the occupy movement. But I don't think police should have the right to arrest journalists for video taping it. Something tells me that the First Amendment protects journalists???

In some states, it's highly illegal to video tape a police officer. The number of states that do this is shrinking as people realize that video is the only way to keep police accountable for their actions.

It's a shame that the cops don't want people to record videos of them; they forget that sometimes the video might protect the cop from charges of brutality. I asked one of our local officers, and he said "we have to assume we are being videotaped all the time. It's not a big deal."

Far too often law enforcement will say "if you have nothing to hide, why are you worried?", but some don't like it when it;s the other way around.

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.